Freeman Spogli Institute for International Studies Program on Energy and Sustainable Development Stanford University


Publications




Image of Cover

The Political Economies of Immigration Law

Journal Article

Author
Mariano-Florentino Cuéllar - Professor and Deane F. Johnson Faculty Scholar at Stanford Law School; Co-Director of CISAC; FSI Senior Fellow; CDDRL Affiliated Faculty; FSE Affiliated Faculty

Published by
UC Irvine Law Review, Vol. 2 no. 1, page(s) 101
March 22, 2012


Abstract:
A largely dysfunctional American immigration system is only poorly explained by simple depictions of the political economy of lawmaking on this issue, blaming factors such as deliberate economic policy choices, longstanding public attitudes, explicit presidential decisions, or general gridlock. Instead, the structure of immigration law emerges from intersecting effects of three separate dynamics — statutory compromises rooted in the political economy of lawmaking, organizational practices reflecting the political economy of implementation, and public reactions implicating the responses of policy elites and the larger public to each other. Together, these factors help constitute an immigration status quo characterized by intense public concern, continuing legal controversies, and powerful obstacles to change. (1) Particularly since 1986, American immigration statutes have created a legal arrangement essentially built to fail, giving authorities regulatory responsibilities that were all but impossible to achieve under existing law. (2) Implementation has been characterized by organizational fragmentation, with policy changes involving one agency producing externalities not owned by that agency, and limited presidential power to change enforcement or implementation. And (3) the interplay of unrealistic statutory goals, enforcement, and growing public concern engenders a polarizing implementation dynamic, where agencies’ incapacity to enforce existing law tends to spur polarized political responses producing legislation that further exacerbates agency difficulties in meeting public expectations.

The resulting process over the last few decades persistently favored expansion in the provision of border enforcement resources. This development is widely supported or at least tolerated by most political actors, even though it fails to address the core institutional problems of the status quo. Beyond what these developments tell us about immigration, they also reveal much about (a) how statutory entrenchment in the United States is affected by political cycles capable of eroding the legitimacy of public agencies, and (b) how powerful nation-states control, in limited but nonetheless significant ways, the transnational flows affecting their well-being and security.